Clark v. Trilinsky

• Decision Date: 01 March 1943
• Docket Number: No. 20153.,20153.
• Parties: CLARK v. TRILINSKY.
• Court: Missouri Court of Appeals

170 S.W.2d 459

CLARK v. TRILINSKY.

No. 20153.

Kansas City Court of Appeals. Missouri.

March 1, 1943.

Rehearing Denied April 5, 1943.

Appeal from Circuit Court, Jackson County; Paul A. Buzard, Judge.

"Not to be published in State Reports."

Action by R. G. Clark against Abraham Trilinsky, also known as Abraham Trillin, doing business as City Food Stores to recover for personal injuries and property damage as result of a collision between plaintiff's automobile and a grocery delivery truck driven by a servant of defendant. From adverse judgment, defendant appeals.

Judgment affirmed.

David P. Dabbs, of Kansas City, for appellant.

Trusty, Pugh, Green & Trusty and Guy W. Green, Jr., all of Kansas City, for respondent.

CAVE, Judge.

This is an action for personal injuries and property damages resulting from a collision between an automobile driven by plaintiff (respondent), north on Cypress Street, and a grocery delivery truck driven by a servant of defendant (appellant) west on Twenty-fifth Street, in Kansas City.

For convenience and clarity, the parties will be referred to as they were in the trial court.

Plaintiff's amended petition, on which the action was tried, alleged several grounds of primary negligence, as well as negligence under the humanitarian doctrine, but the cause was submitted to the jury on (a) failure to yield the right of way, and (b) excessive speed, in the conjunctive. Defendant's answer denied all the allegations of the petition and pleaded contributory negligence in (1) failure of plaintiff to yield the right of way; (2) negligent rate of speed; and (3) negligence of plaintiff in failure to avoid the collision by stopping his automobile, slackening its speed or turning it aside to avoid the collision. The first and third grounds of contributory negligence were submitted to the jury. Trial resulted in a verdict and judgment for plaintiff in the sum of $800, from which defendant perfected his appeal.

The evidence disclosed that the collision occurred at Twenty-fifth and Cypress Streets in Kansas City, at about noon. Cypress Street runs north and south and is 26 feet wide from curb to curb, and Twenty-fifth Street runs east and west and is 27 feet wide. The pavement was dry. Plaintiff was driving his automobile north on Cypress Street at a speed of 12 or 15 miles an hour. Defendant's truck was being driven westward on Twenty-fifth Street, and according to plaintiff's evidence was proceeding at 40 to 50 miles an hour. According to defendant's evidence, its speed was 15 to 20 miles an hour. The front of plaintiff's automobile was two-thirds across the intersection when the collision occurred. There was no change in plaintiff's speed before the collision, and traveling at the rate of speed he said he was, he could have stopped his automobile in 3 to 5 feet.

Since no question is raised that a submissible case was not made and no claim of excessive verdict, we deem this a sufficient summary of the evidence.

Defendant assigns three grounds of error in substance as follows: (1) Plaintiff's Instruction No. 3 denied defendant a verdict, if plaintiff's negligence was the sole cause of the collision; (2) the charge composed of plaintiff's Instructions 1 and 3 was confusing and contradictory and denied defendant a verdict if the jury found plaintiff's negligence was the sole cause of the collision; (3) the court erred in admitting in evidence an ordinance of Kansas City because said ordinance conflicts with Section 8385, paragraph (l) R.S.1939, Mo.R.S. A. § 8385(l).

Plaintiff's Instruction No. 1 submitted two grounds of negligence by defendant, and, among other things, required the jury to find that "by reason of such facts and such negligence of the defendant, the collision directly resulted and was caused and that plaintiff was damaged * * * ".

Instruction No. 3 related to the defense of contributory negligence and defined the care which was required of plaintiff in the operation of his automobile and that if he used such care he was not negligent; then followed this language which is criticized by the defendant; "But if you find from the credible evidence that plaintiff failed to use such care you could not find against the plaintiff on the issue of contributory negligence unless you further find from the credible evidence that the defendant was negligent under Instruction No. 1, and then further find from the credible evidence that such negligence of the plaintiff and such negligence of the defendant directly combined and concurred to create and produce the efficient cause of the casualty and injury, and absent the negligence of plaintiff, the casualty would not have happened * * *."

It will be observed that plaintiff's main instruction submitted two grounds of primary negligence, and among other things, required the jury to find that "by reason of such facts and such negligence of the defendant, the collision directly resulted and was caused and that plaintiff was damaged * * * ". Of course, if the jury found that the injuries were the direct result and were caused by defendant's negligence they could not find that they were due to the sole negligence of plaintiff. In that sense, plaintiff's instruction would be the converse of a sole cause instruction, but it would not prevent defendant from properly submitting his theory of sole cause. This is the specific holding in State ex rel. Snider v. Shain et al., 345 Mo. 950, 137 S. W.2d 527, loc. cit. 530; Blunk v. Snider, Mo.App., 129 S.W.2d 1075, loc. cit. 1083. Defendant offered no sole cause instruction, but submitted his theory of defense on two grounds of contributory negligence. We need not, and do not, decide the question of whether a defendant is entitled to submit the defense of sole cause where plaintiff's case is submitted on a proper instruction limited solely to primary negligence and defendant submits the issue or issues of contributory negligence. Under the above two decisions, we rule that plaintiff's Instruction No. 1 did not prevent defendant from properly submitting his theory of "sole cause", and that such instruction would not have been inconsistent with a proper "sole cause" instruction. There is no other criticism leveled at plaintiff's Instruction No. 1. But defendant argues that plaintiff's Instruction No. 3 also denies him the right to a "sole cause" defense, and points to the italicized portion of such instruction as his ground for such criticism. Instruction No. 3 is confined to the issue of contributory negligence and while it is rather cumbersome, we cannot say that it is so confusing that it constitutes reversible error for that reason. But when the two instructions are read together, do they deny defendant a verdict on sole cause theory?

Defendant says that under the evidence there could exist but three legal situactions: (1) Defendant alone negligent; (2) plaintiff alone negligent; and (3) both negligent; and argues that Instruction 3 took from him the right to a verdict if plaintiff alone was negligent. We must keep in mind that plaintiff's Instruction No. 1, which directed a verdict, required the jury to find that the collision and injuries "directly resulted and were caused" by defendant's negligence; consequently, it could not so find if it believed plaintiff was solely negligent or both were negligent. Instruction No. 3 relates only to the issue of contributory negligence and instructs the jury that they cannot find against the plaintiff on that issue unless they find that he and defendant were both negligent and that the negligence of both...